Posted on 08/16/2008 8:22:12 AM PDT by RedRover
Two Camp Pendleton Marines, ordered to testify against former sergeant Jose L. Nazario by the US District Judge presiding over his voluntary manslaughter trial, have decided to refuse the judge’s order.
Kevin B. McDermott, the Orange County attorney representing Nazario, says he received the news this morning. “It shows the solidarity of these Marines,” McDermott says.
Nazario is charged with two counts of voluntary manslaughter for allegedly executing two captured enemy combatants, compelling his subordinates to assist him in killing two others, and unlawfully using a firearm--his M-16 rifle--in the commission of the crime.
Weemer and Nelson face general court-martials for murder and dereliction of duty at Camp Pendleton for the same incident.
The two also face possible time in a civilian jail for criminal contempt if they follow through on their decision to remain mum, according to Christopher D. Johnson, the public defender appointed to represent Weemer in the civilian court proceedings.
Both Marines have been subpoenaed to appear at Nazario’s trial in US District Court in Riverside, California, on August 19th when the trial is scheduled to commence, court records show.
Yesterday Defend Our Marines reported that after Sgt Nelson was charged with murder, and while he was being represented by an appointed Marine Corps lawyer, Nelson tried to entrap Nazario in a series of telephone conversations with his former squad leader. Coached by an NCIS agent, and with a tape recorder running, Nelson attempted to get Nazario to admit that he was complicit in the alleged executions.
Nelson’s attitude toward cooperating with the government changed markedly after the 26-year old Hell House veteran retained the services of Joseph Low, a former Marine who now represents him.
In May, Low told Defend Our Marines he didn't represent "rats." In July, the occasionally caustic former Marine enlisted man asked the military judge presiding over Nelson’s court-martial to approve the testimony of a specialist in "forced and false confessions."
Since then Nelson has been incarcerated twice for civil contempt after refusing to testify before a federal Grand Jury. The first time he was jailed in Los Angeles in May, and again in the San Bernardino County Jail during June, where he joined Weemer after he refused to talk.
Presiding US District Judge Stephen G. Larson let them out in time for the 4th of July holiday without dismissing the civil contempt citation that still hangs over them.
US Attorney Thomas P. O’Brien on Monday asked Larson to issue the orders again compelling sergeants Nelson and Weemer to testify in return for immunity from prosecution for what they might reveal.
Case wobbles, may fall down
Without their testimony the government’s case lacks the foundation to prove that a crime occurred on November 9, 2004 when the four insurgents were allegedly executed, numerous lawyers contend. Unless the government can produce physical and forensic evidence, or the identities of the alleged victims, it faces serious obstacles ever establishing that a crime was committed without their eyewitness testimony.
Nazario had just led his squad of Marine infantrymen from 3rd Platoon, Kilo Company, 3rd Battalion, 1st Marines across the line of departure when they allegedly encountered the missing insurgent victims during a firefight, the government says. After taking them in custody and recovering their weapons and ammunition the squad allegedly received radioed orders to kill the prisoners and move out.
The government claims Nazario then urged Nelson and Weemer to help execute the prisoners, which they did. According to the government’s application for the order compelling Weemer and Nazario to testify, they were supposed to implement the carefully choreographed instructions all 1st Marine Division personnel received for handlings enemy prisoners before the battle began. The government claims:
During Operation Phantom Fury, the Marines had established detailed guidelines for the proper handling of detainees. All Marines units carried flex ties that were to be used to handcuff detainees. Once persons were captured and searched, they were to be transported to the train station just north of the city, which served as a base of operations for US forces. At the train station, an officer was designated to process the detainees. On November 9, the first day of the ground assault, defendant’s battalion captured approximately 25 detainees. Overall throughout the battle, hundreds of enemy insurgents were captured and detained.
But in reality, the situation was far from the calm, organized environment the government prosecutors apparently intend to present to the oblivious civilian jury. The fighting was so fierce that the 3/1 Battalion Aid Station received 197 combat casualties out of the 1,250-man reinforced battalion during the first 96 hours of combat, Marine Corps records show.
Many of the wounded Marines had to wait for as much as an hour or more for transportation to take them off the battlefield because the roads were frequently interdicted by enemy fighters. The Marines reported the insurgents laid down their weapons in one area and then moved to another pre-positioned stock of arms to resume the fight.
That practice reportedly stopped after the rules of engagement were liberalized so they could be killed when they were observed, the Marines said.
The first batch of prisoners captured by Kilo were taken at the Al Jamah Kabir mosque, the same mosque where a Marine sniper attached to Kilo was videotaped by a television news crew shooting a wounded insurgent in the head. A later investigation revealed that the prisoners had already been captured once and then abandoned to their fate until Kilo’s Marines encountered them the second time.
After the news moved on to other calamities the Marine Corps exonerated the young Marine sniper, promoted him to sergeant, and allowed him to go home unmolested for discharge. That would not happen again.
According to both the 3/1 After Action Report and witness recollections, 3rd Platoon, Kilo Company didn’t capture any prisoners again until much later in November, after the enemy’s back was broken and the insurgents began giving up en masse.
The handful captured by 3rd Platoon along Phase Line Henry were detained after the November 13 Hell House engagement. They were captured by the squad led by Sgt Christopher T. Heflin. He was killed on November 16 by enemy mortar fire, battalion records show.
The battalion certification for the Combat Action Ribbon awarded to surviving members of Nazario’s squad at the conclusion of the battle paints a far more realistic picture of the actual environment Nazario and his squad encountered at Fallujah; a chaotic, death-filled city where Marines began dying as soon as they crossed the line of departure on the morning of November 9.
On 8 November to 15 December, the Battalion participated in high intensity, urban combat in the City of Fallujah, in support of Operation PHANTOM FURY. During the Battalion’s assault in the City of Fallujah, every Marine and Sailor was attacked by direct and indirect enemy fire. The fighting in the city was so intense, that many engagements were fought at distances less than 10 meters. IEDs were used as booby traps upon entering a building, and abandoned cars were used as massive bombs. During the assault, the Fire Support Teams would shape the battlefield using air strikes and artillery strikes shaped the area of operation before the Marines and Sailors began their assault south through the city. The Marines and Sailors would then search and clear every building to root out insurgents still occupying positions. Numerous enemy forces barricaded themselves in well-fortified houses, which made entry into the houses extremely difficult. Every attempt was made to enter an enemy strongpoint, to include using grenades, SMAW rockets, and demolition. The Battalion Headquarters, located at the train station north of the city, was constantly attacked by enemy direct and indirect fire. These attacks caused many casualties, to include the death of a Marine on the 81mm Mortar gun line. Logistical convoys were dispatched from Camp Abu Ghurayb to deliver supplies to the forward Companies. On multiple occasions, logistical convoys were attacked by RPGs and small arms fire from adjacent houses to roads leading in and out of the city. It was apparent that the threat was not just in front of the Battalion, but it surrounded it.
Simply stated, one Marine officer who was there said, “prisoners weren’t a priority.”
If you'd like to help Jose Nazario receive the defense he deserves, see our APPEAL.
Good.
"Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." - Manuel II Palelologus
Looks like the Border Patrol needs to form a “Defend our Border Patrol” organization....keep up the good work. Shame the government continues to ‘sting’ the good guys, and give the bad guys (CAIR, ACLU, et al) a free pass!
Go online to the Warrior Fund and donate now (just write “Jose Nazario Defense Fund” in the comment field during the checkout process). Or if, you prefer, send a check, to...
United American Patriots Inc
Attn: Warrior Fund / Jose Nazario case
5817 Starboard Drive, Suite 100
Greensboro NC 27410
Defend Our Marines will match the first $1,000 dollar-for-dollar with a $1,000 contribution of our own.
Encouraging news! If there was no crime they sure can’t be prosecuted for one. Happy to see Sgt. Nelson has an attorney who isn’t about to go along with the NCIS and prosecutors railroad job.
Another good piece by Nat Helms.
I'll be at my duty station awaiting your stupid arrest for my courts martial ...
Sir.
Wow! That is an excellent report!
The Marines reported the insurgents laid down their weapons in one area and then moved to another pre-positioned stock of arms to resume the fight.A form of false surrender, apparently.That practice reportedly stopped after the rules of engagement were liberalized so they could be killed when they were observed, the Marines said.
When the opposition doesn't respect the Geneva Conventions, those conventions cannot apply to our troops. What parent in his right mind would see his son become a soldier under such conditions?
Definitely, there ought to be a “Defend Our Border Patrol” organization. Hope someone will get it rolling!
BTW, it’s so enraging that both the border agents and former sergeant Nazario were charged with using firearms in the course of alleged crimes—firearms issued to them by our government.
How exactly do civilian criminal courts claim juris diction in a matter that took place in another country?
Hypothetically, and making it as difficult an ethical question as possible: if it is a death sentence for your squad to take prisoners OR release prisoners, then do you take or release prisoners?
Since it would be a form of suicide, it would be, in my view, unethical to intentionally end your own life and especially that of any subordinants.
The next question is this: what if it is 65% certain that it is a death sentence? 50%? 45%? 25%? 10%? 2%?
Is it possible on the battlefield for the “problem of prisoners” to be a death warrant for a unit in contact with the enemy? How possible is it?
LOL! You should be writing dialouge for these guys!
Excellent, Red. You couldn’t find a more pertinent scene in regards to this fiasco.
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